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ADT v Allianz Australia Insurance Limited [2019] NSWDRS CA 097

Overview

Jurisdiction:  Miscellaneous Claims Assessment
Catchwords:  Statutory benefits – wholly or mostly at fault – fault of injured person – intersection – head-on collision – traffic lights – stationary vehicle – incorrect side of the roadway

Legislation cited:  Civil Liability Act 2002 (NSW) s 5R

  • Motor Accident Injuries Act 2017 (NSW) ss 3.11, 3.28, 7.36, Schedule 2(3)
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines effective 13 July 2018 cl 7.441

Parties:

  • ADT – claimant
  • Allianz Australia Insurance Limited – insurer

Disclaimer: This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous claims assessment certificate

View here

Issued in accordance with section 7.36(5) of the Motor Accident Injuries Act 2017 and clause 7.441 of the Motor Accident Guidelines.

Determination of a matter declared under Schedule 2(3) of the Act to be a miscellaneous claims assessment matter.

Claimant

ADT

Insurer

Allianz Australia Insurance Limited

Applicant

ADT

Date of Accident

5 July 2018

DRS Reference

10074923

Insurer Claim Number

75C000874

Date of Internal Review

13 December 2018

DRS Claims Assessor

David R Ford

Date of Decision

25 June 2019

Conference date and time

Assessed on the papers

Determination

The findings of the assessment of this dispute are as follows:

  1. For the purposes of section 3.11 of the Motor Accidents Injuries Act 2017 (NSW) the motor accident was not caused wholly or mostly by the fault of the injured person.
  2. For the purposes of section 3.28 of the Motor Accidents Injuries Act 2017 (NSW) the motor accident was not caused wholly or mostly by the fault of the injured person.
  3. Effective date of this determination takes effect on 25 June 2019.
  4. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,796.30 inclusive of GST.

A brief statement of my reasons for this determination are attached to this certificate.

David R Ford

Claims Assessor

Dispute Resolution Services

Reasons

Background

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)[D][E] of the Motor Accident Injuries Act 2017, about whether for the purposes of section 3.28 statutory benefits after 26 weeks to injured persons, persons most at fault or injured persons with minor injuries.

  1. This is a dispute between ADT and Allianz Australia Insurance Limited, the Insurer, with respect to the payment of statutory benefits, pursuant to section 3.11 and 3.28 of the Motor Accidents Injuries Act 2017 (the Act).
  2. The Insurer undertook an internal review and a statement of reasons is attached to the Application form and is dated 13 December 2018.
  3. ADT seeks to challenge the determination.
  4. On 5 July 2018, at approximately 6:30 am, the Claimant was stationary in his motor vehicle at the intersection of The Horsley Drive and Justin Street, Smithfield, waiting to make a right-hand turn into Justin Street. The motor vehicle being driven by the Insured’s driver was approaching from the opposite direction in The Horsley Drive when it is alleged by ADT the Insured’s driver veered onto the incorrect side of the roadway and collided head- on with ADT’s vehicle.
  5. In the Application for Personal Injuries Benefits there is no provision in this document for the drawing of a diagram of the accident.
  6. In my report of First Teleconference dated 28 February 2018, I requested both parties to provide me with a sketched diagram of the scene of the accident, depicting the position of the Claimant’s vehicle on the roadway immediately prior to the impact with the Insured’s motor vehicle and the position of the Insured’s motor vehicle immediately prior to impact.
  7. After receiving this diagram, I allowed a further period of time for the Insurer to contact the Insured’s driver and obtain from her, her own sketched diagram of the accident scene and/or comments in relation to the sketched diagram drawn by the Claimant.
  8. I received a drawn diagram of the accident from the solicitor for the Claimant by letter dated 29 March 2019. I subsequently received further submissions on behalf of the Insurer dated 9 May 2019 in which there was a diagram prepared by the investigator, but it was stated this diagram approved by the Insured’s driver.
  9. The Insurer undertook an internal review dated 13 December 2018 and the Insurer considered the Claimant wholly or mostly at fault, and after 26 weeks, the weekly payments under section 3.11 and 3.28 were ceased.
  10. The Claimant submits he was neither or mostly at fault in the motor accident and he is entitled to a continuation of statutory benefits. He has now filed this Application seeking a determination of the dispute with the Insurer.

Documents considered

  1. I have considered the documents provided in the Application and the Reply.
  2. In addition I have considered the diagram by the solicitor for the Claimant by letter dated 29 March 2019, and the following documents which were served by the solicitor for the Claimant by dated 29 May 2019:-
    1. Statement of Claimant, ADT, dated 27 May 2019.
    2. Statement of ADT’s son, dated 27 May 2019.
    3. Applicant’s supplementary submissions.
  3. I also received by email further submissions on behalf of the Insurer dated 9 May 2019, together with:-
    1. A diagram.
    2. All States – Record of Conversations Log, dated 4 April 2019
    3. Documents from Bingle dated 5 March 2019, together with various statements and photographs.
  4. I note in the documents contained from Bingle, there are a number of redactions.

Insurer's submissions

  1. In the internal review and statement of reasons (document A5) dated 13 December 2018, I refer to paragraph 3, which states as follows:-

    “I have reviewed a statement of the Insured’s driver dated 20 August 2018. The insured’s driver describes driving east along Horsley Drive in the outside lane approaching the intersection with Justin Street. She states that lighting was low and her headlights were on. She stated that as she approached the intersection she noticed traffic lights were green and she slowed to around 40-50 km/h. She states that you attempted to turn right as she was entering the intersection and collided with her vehicle.”

  2. It is further submitted at paragraph 5 of the internal review the following:-

    “I have reviewed photographs of the intersection as well as photographs of the two vehicles after the collision and also property damage photos. There appears to be damage to the front right-hand side of the insured vehicle. Immediately after the collision, the insured’s vehicle is in the outside land of Horsley drive in the intersection. There is also damage to the back-left hand corner of the insured vehicle’s car. The entire front of your vehicle appears to be damaged.”

  3. I also refer to paragraph 6 as follows:-

    “I have reviewed the request for an internal review dated 23 November 2018 submitted by your legal representative on your behalf. I note the submissions that Allianz should accept your version of the motor vehicle accident rather than that of the insured driver. I also note the submission that photos demonstrate damage to the front of your vehicle which is submitted corroborates your version of events. I also note that no further evidence was attached.”

  4. I further note the following submission at paragraph 9:-

    “The property damage to both vehicles also supports the view that your vehicle impacted with the insured vehicle while in a parallel orientation to Justin Street causing damage to the right-hand corner of the insured vehicle and the entire front of your vehicle. The property damage does not support your version of events that the insured driver drove across the intersection and impacted with you front on, which would have resulted in damage across the front of the insured vehicle.”

  5. In the further submissions on behalf of the Insurer dated 9 May 2019, the Insurer submits, inter-alia, that there is now evidence of a contemporaneous version of events given by the Claimant’s son as to the circumstances of the accident indicating the Claimant has failed to give right of way to the Insured driver and run into her. This submission is based upon the fact that in the comprehensive claim file the Claimant with the Insurer, Bingle, the Claimant’s son has stated as follows:-

    “Dad was driving turning right into Justin St. TP was coming from opposite way. He stopped before white line and then went forward a bit and hit tp Poi IV: front Poi TP: front and ds.”

  6. It is further submitted that consequently the Claimant’s nominated representative accepted liability in the accident for failing to give right of way, and excess was applied.
  7. The Insurer further submits as follows in paragraph 10:-

“The Insurer submits that this document is evidence of a contemporaneous version of events given by the Claimant’s son and nominated representative on the day of the accident which states that the Claimant has failed to give right of way to the insured driver and ‘went forward a bit and hit’ the insured driver after passing the white line.”

  1. However, I have difficulty in accepting the Insured’s driver version of the circumstances surrounding the accident, having regard to the fact the diagram drawn by the investigator and attached to the Insurer’s submissions dated 9 May 2019, has the Insured’s vehicle travelling in the “inside lane” of the Horsley Drive, whereas prior to the service of this diagram the Insurer submitted in their internal review the Insured driver was driving along The Horsley Drive in the “outside lane” approaching the intersection with Justin Street.

Claimant's submissions

  1. The solicitors for the Claimant relied upon a statement of interview with the Claimant dated 24 August 2018 (document A3). This statement was taken with the assistance of a XXXXX interpreter. The Claimant stated at paragraph 9 the following:-

    “I had my right indicator on but had not yet been able to begin turning right when an oncoming car, a Toyota sedan I think, which was travelling quite fast, probably a little more than the 60 kph speed limit there, in the inside east bound land, crossed the dividing line into my path. The Toyota crashed into me almost head-on – it’s front driver’s side colliding with the middle front of my car. It happened so fast and I was so surprised that I don’t recall observing anything that caused the collision. I can only assume that the Toyota driver was not paying attention fully or not fully in control, for reasons I’m not aware of.”

  2. The Claimant further states at paragraph 10”-

    “The angle and speed of the impact spun the rear of my car around clock-wise, so that the front came to rest pointing towards Justin Street, a little behind the Toyota, though it remained on the west bound side of The Horsley drive. My airbag was not triggered.”

  3. The photographs attached to the internal review (document A5) confirm the Claimant’s version of the position of the vehicles immediately after the collision. The photographs also depicts the Insured’s motor vehicle in the outside “lane” of The Horsley Drive and not the inside lane as depicted in the diagram attached to the further submissions dated 9 May 2019.
  4. I refer to the statement of the Claimant dated 27 May 2019. Inter-alia, the Claimant states as follows:-

“8. My son reported the accident to Bingle on the afternoon of 5 July 2018 by telephone whilst I was in hospital.

  1. At the conference with my solicitor on 27 May 2019, the interpreter translated the content of the Bingle document recording a version of the accident of 5 July 2018. The version recorded in the Bingle document is incorrect.
  2. My statement to the investigator retained by Allianz dated 24 August 2018 correctly records my version of the accident.”
  3. I refer to the statement of ADT’s son dated 27 May 2019. ADT’s son states as follows:-

“5. I confirm my father does not write, read or speak English.

6. On the afternoon of 5 July 2018 whilst my father was at Fairfield Hospital, I telephoned the comprehensive insurer of my father’s vehicle, Bingle to report the accident and to make a formal claim. During the conversation with the claims officer, I provided full details of the accident including what I understood to be the full circumstances of the accident.

  1. I attended a conference at the office of Chadwick Lawyers on 27 May 2019 and read a document of Bingle which, on page 1, records a version of the accident. I now understand, after conferring with my father, that the version recorded on page 1 of the Bingle documents is incorrect.”
  2. In the photographic schedule attached to the application (documents A6), there are a number of photographs which depict accident damage to the front of the Insured’s motor vehicle and accident damage to the front of the Claimant’s motor vehicle. However, there is no photograph depicting damage to the driver’s side of the Insured’s vehicle. In the internal review (document A5), the Insurer notes the following:-

“There appears to be damage to the front right-hand side of the insured vehicle. Immediately after the collision, the insured vehicle is in the outside lane of Horsley Drive in the intersection. There is also damage to the back left-hand corner of the insured vehicle’s car.”

  1. The photographic schedule (document A6) does depict damage to the back left-land corner of the Insured’s vehicle, there are no photographs of damage allegedly sustained to the driver’s side of the Insured’s vehicle which one would assume would have occurred having regard to the diagram drawn by the investigator and approved by the Insured, which is attached to the further submissions dated 9 May 2019.

    Legislation

  2. In making my decision/conducting my review I have considered the following legislation and guidelines:
    • Motor Accident Injuries Act 2017 (NSW) (“the Act”)
    • Motor Accident Injuries Regulation 2017
    • Motor Accident Guidelines 2017
    • Civil Liability Act 2002 (NSW)

    Reasons

    Was ADT wholly at fault in causing his accident?
  3. I find the diagram drawn by the investigator approved by the Insured’s driver attached to the further submissions dated 9 May 2019, is an incorrect depiction of the position of the two vehicles immediately prior to impact.
  4. I find the Insured’s driver was travelling in the outside lane of The Horsley Drive shortly prior to impact.
  5. I further accept the statements of the Claimant and his son referred to above which caused me to not accept the statements as recorded in the Bingle claim form. I accepted the information contained in the Bingle claim form was provided by the Claimant’s son, who at that stage, did not have the opportunity of conferring with his father regarding the circumstances leading up to the collision between both vehicles.
  6. I find it difficult to comprehend why the Insured’s driver would approve a diagram drawn by the investigator which is clearly incorrect having regard to all the preceding information which she had furnished to the Insurer.
  1. Having regard to the photographs attached to the schedule (document A6) especially photograph number 9, it is apparent the damage which has been sustained to the Claimant’s motor vehicle is entirely to the front of the vehicle. I would expect if the Claimant’s vehicle had encroached into the outside lane of The Horsley Drive, even for a distance of only a few metres, there would have been significant damage to the left passenger side of the Claimant’s motor vehicle, rather than the extensive damage to the entire front of the Claimant’s vehicle.
  2. I therefore find the Insured’s driver was negligent in the driving of her vehicle as I find she has veered onto the incorrect side of the roadway and collided with the front of the Claimant’s vehicle at the intersection.
  3. I further find at all material times, the Claimant’s vehicle was stationary and not encroaching into the outside land of The Horsley Drive in which the Insured’s motor vehicle was travelling.
  4. I therefore find ADT was not wholly at fault in causing the accident.
Was the motor accident caused mostly by the fault if ADT?
  1. The onus of proving contributory negligence rests upon the Insurer.
  2. In deciding whether the Claimant was guilty of contributory negligence, I must have regard as to the standard of care set out in Section 5R of the Civil Liability Act (NSW) 2002.
  3. As stated above, I find the Insured’s driver veered onto the incorrect side of the roadway and collided head-on with the Claimant’s motor vehicle. I also find at all material times, the Claimant’s vehicle was stationary at the said intersection prior to impact.
  4. Accordingly, I do not find the motor accident was caused mostly by the fault of ADT.

Findings

  1. Therefore, I find accident of 5 July 2018, was not caused wholly by the fault of ADT.
  2. I also find the accident of 5 July 2018, was not caused mostly by the fault of ADT.

Costs and disbursements

  1. In the circumstances, the Claimant is entitled to payment of legal costs.
  2. I will allow costs in the sum $1,796.30 inclusive of GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

  1. For the purposes of sections 3.11 and 3.28 the motor accident was caused by the fault of another person.
  2. For the purposes of sections 3.11 and 3.28 the motor accident was not caused mostly by the fault of the injured person.
  3. Effective Date: This determination takes effect on 25 June 2019.
  4. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,796.30 inclusive of GST.

David R Ford

Claims Assessor

Dispute Resolution Services